Brian Bix is the Frederick W. Thomas Professor for the Interdisciplinary Study of Law and Language at the University of Minnesota Law School

(The
following is adapted from a much longer review that will appear in the Tulsa Law Review.)

In her important, timely, and
provocative book, Boilerplate: The Fine Print,
Vanishing Rights, and the Rule of Law, Margaret Jane Radin offers some
scathing observations regarding the motivation and effects of the terms placed
in consumer and employee contracts. She
argues that the current contracting practices make a mockery of consent, and
undermine the rule of law. Radin is
clearly correct in her essential claim, that for many contracting parties
freedom of contract is less an ideal than a sham, and that boilerplate provisions are being used by
companies to circumvent substantive rights and remedies consumers, employees,
and other contracting parties would otherwise have.

There
is one issue, however, on which I might want to offer a qualified dissent, or
at least suggest a slight modification.
In Boilerplate, Radin expresses
concerns about the “democratic degradation,” by which she means the way in
which important legislatively created rights can be (enforceably) diminished or
waived through contractual agreement. (pp. 33-51) Her argument is that
businesses should not be able to undo through simple contractual provisions
(especially provisions that are hidden, hard to understand, and hard to avoid)
what has been passed through the popular, democratic law-making process.

The difficulty with
this argument is that the ability to modify or waive these rights is itself also
the direct or indirect product of legislation.
The most obvious example is the Federal Arbitration Act (FAA), Pub. L.
No. 68-401, 43 Stat. 883 (1925), codified as amended at 9 U.S.C. §§ 1-14, which
has been the ground for enforcing the arbitration agreements Radin complains
about that waive consumers’ and employees’ rights to litigate claims in court
and to bring class action claims. The
ability of vendors to remove consumer’s rights has been enhanced substantially
by the United States Supreme Court’s robust reading in recent years of the
Federal Arbitration Act. See, e.g., AT&T v. Concepcion, 131 S. Ct. 1740 (2011); Rent-A-Center,
West, Inc. v. Jackson, 130 S. Ct. 2772 (2010); Buckeye Check Cashing, Inc. v.
Cardegna, 546 U.S. 440 (2006). (Of course,
one might disagree with the reading of the FAA that the majority of the Supreme
Court has given, but that is a separate issue.)

Similarly, Congress
and state legislatures certainly have the ability to make the right to litigate
certain claims or to bring class actions non-waivable, and have occasionally
done so. For example, Congress has
forbidden mandatory arbitration provisions in consumer credit agreements with
members of the United States military. (See John Warner National Defense
Authorization Act of 2007, Pub. L. No. 109-364, § 670(a), 120 Stat. 2083,
codified at 10 U.S.C. §§ 987(e)(3), (f)(4).)
One can also find state laws that expressly restrict the ability of
parties to waive procedural rights, at least for certain categories of
transactions. One example is the
Illinois Franchise Act, where Section 4 states:
“Any provision in a franchise agreement that designates jurisdiction or
venue in a forum outside of this State is void, provided that a franchise agreement
may provide for arbitration in a forum outside of this State.” 815 ILCS 705/4.

Someone might object
that the argument here is putting too much argumentative weight on the fact
that federal or state legislatures have not acted to restrict the effect of
contractual boilerplate, and that one should not make too much of legislative
inaction. However, the fact that state
and federal legislatures have shown the ability and willingness to restrict the
use of certain kinds of boilerplate means that the failure to do so in other
circumstances is at least noteworthy.
Additionally,
Congress has sometimes offered express permission to have certain types of
claims resolved by arbitration or other forms of alternative dispute
resolution. For example, the Civil
Rights Act of 1991 includes the following language: “Where appropriate and to
the extent authorized by law, the use of alternative means of dispute
resolution, including . . . arbitration, is encouraged to resolve disputes
arising under [Title VII].” Pub. L. No.
102-166, § 118, 105 Stat. at 1081.)

It is not democratic
degradation, but the lesser side of American political life – the power of
business interests, business lobbying, corporate money after Citizens United, etc. – that contributes
significantly to the current contract law world in which rights disappear
through boilerplate. One need only watch
the way that the Congress continues to hobble the Federal Consumer Finance
Agency (there had once been talk of that agency acting against mandatory
arbitration in consumer and employment agreements, but that now seems highly
unlikely).